People v. Deutsch

• Decision Date: 24 April 1996
• Docket Number: No. A066545,A066545
• Citation: 52 Cal.Rptr.2d 366,44 Cal.App.4th 1224
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 2827, 96 Daily Journal D.A.R. 4742 The PEOPLE, Plaintiff and Respondent, v. Dorian Odette DEUTSCH, Defendant and Appellant.

Page 366

52 Cal.Rptr.2d 366

44 Cal.App.4th 1224, 96 Cal. Daily Op. Serv. 2827,

96 Daily Journal D.A.R. 4742

The PEOPLE, Plaintiff and Respondent, v. Dorian Odette DEUTSCH, Defendant and Appellant.

No. A066545.

Court of Appeal, First District, Division 4, California.

April 24, 1996.

Certified for Partial Publication ^*

Rehearing Denied May 23, 1996.

Review Denied July 24, 1996. ^**

Katherine Alfieri, Santa Rosa, for Appellant.

Daniel E. Lungren, Attorney General of the State of California, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, and Seth K. Schalit, Deputy Attorney General, San Francisco, for Respondent.

POCHE, Associate Justice.

This case presents the question of whether a warrantless scan made with a thermal imaging device of a private dwelling constitutes an unreasonable search within the meaning of the Fourth Amendment to the United States Constitution. We hold that it does.

Defendant, Dorian Deutsch, pleaded no contest to a single count of furnishing a room in a building for the cultivation of marijuana (Health & Saf.Code, § 11366.5). On appeal she contends that the trial court erred in denying her motion to suppress evidence which was seized in a search made with a warrant issued in part upon the basis of the thermal imager scan of her home. (Pen.Code, § 1538.5.) That evidence included some 200 cannabis plants which were being cultivated hydroponically under high wattage lights in two walled-off portions of the home's garage.

According to the police officer's affidavit offered in support of the search warrant a confidential informant gave a friend a ride to defendant's home. When they arrived defendant gave the informant a small amount of dried marijuana as a thank you. The informant did not report seeing any growing cannabis plants inside the home, but did note that two doors in the living room were "blocked off with bedsheets." The officer obtained a search warrant for utility records which showed "an unusually high electrical usage" which he concluded was "extremely consistent with the indoor cultivation of cannabis." Some four days later, without having obtained a warrant the officer drove by the residence at 1:30 in the morning and scanned it with a thermal imager.

As described in the officer's affidavit a thermal imaging device is "a passive, nonintrusive system which detects differences in temperature at surface levels." Such devices measure radiant energy in the thermal portion of the electromagnetic spectrum ¹ and display their readings showing areas which are relatively cold as nearly black, warmer areas in shades of gray and hot areas as white. (U.S. v. Porco (D.Wyo.1994) 842 F.Supp. 1393, 1396.) With the imager the officer "observed high heat level readings, showing excessive heat release" from the "west side, north face, of the residence, which appeared to be the garage area."

Discussion

1. Thermal Imaging

The warrantless use of thermal imaging devices has generated a considerable body of legal authority the bulk of which has sanctioned their use, concluding that their use is not an unreasonable search. A much smaller body of caselaw has rejected that view, and represents the better reasoned authority as applied to thermal imaging scans of private residences.

Defendant maintains that use of the thermal imager on her residence was a warrantless search conducted in violation of the right, under the Fourth Amendment to the United States Constitution "of the people to be secure in their persons, houses, papers and effects, against unreasonable searches...." In Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 the Supreme Court rejected the notion that every impermissible governmental intrusion must involve a physical invasion or trespass. (Id. at p. 353., 88 S.Ct. at p. 512) Instead, it read the protections of the amendment to foreclose a warrantless electronic interception of telephone calls made from a glass enclosed public phone booth. (Id. at pp. 348, 352, 88 S.Ct. at pp. 509, 511.) As articulated in Justice Harlan's concurrence the appropriate test for Fourth Amendment purposes is twofold: first, the person must demonstrate an actual, subjective expectation of privacy in that which is searched and second, that expectation must be one our society recognizes to be reasonable. (Id. at p. 361, 88 S.Ct. at p. 516 (conc. opn. of Harlan, J.).)

While Katz rejected strict categories of protected versus unprotected places, Justice Harlan noted the "home is, for most purposes, a place where [one] expects privacy, but objects, activities, or statements that [one] exposes" there to outsiders may fall outside the protection of the amendment because the householder has displayed them freely and has shown no intention to keep them private. (Id., 389 U.S. at p. 361, 88 S.Ct. at p. 516 (conc. opn. of Harlan, J.).) More recently the Supreme Court has restated the particular deference accorded the home characterizing as a basic "Fourth Amendment principle" the notion that "private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable." (United States v. Karo (1984) 468 U.S. 705, 714, 104 S.Ct. 3296, 3303, 82 L.Ed.2d 530.)

Information or activities which are exposed to public view cannot be characterized as something in which a person has a subjective expectation of privacy, nor can they fulfill the second prong of Katz--as being that which society reasonably expects will remain private. A common theme of public disclosure which defeats privacy runs through many cases in which no search was found to have occurred: such as a mechanically recorded list of phone numbers dialed kept by the phone company which has been held to be as publicly disclosed as if the calls had been made through an operator (Smith v. Maryland (1979) 442 U.S. 735, 743-744, 99 S.Ct. 2577, 2581-2582, 61 L.Ed.2d 220), or high resolution photographs of structures in an industrial building complex viewed from the air which are as available to government inspection as to that of any airborne passerby. (Dow Chemical Co. v. United States (l986) 476 U.S. 227, 237, fn. 4, 239, 106 S.Ct. 1819, 1826, fn. 4, 1827, 90 L.Ed.2d 226.) Accordingly, a warrantless thermal scan of an outbuilding located some 200-300 yards from a home has been upheld because the structure was in an "open field." (U.S. v. Ishmael (5th Cir.1995) 48 F.3d 850, 857.)

One who discards garbage by setting it out on the public street has renounced any expectation of privacy in the contents of his garbage bin. (California v. Greenwood (1988) 486 U.S. 35, 40, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30.) Analogizing to the discarded garbage of Greenwood certain thermal imaging opinions have characterized the heat signatures registered by the device as "heat waste." (U.S. v. Penny-Feeney (D.Hawai'i 1991) 773 F.Supp. 220, 225, affd. on other grounds in U.S. v. Feeney (9th Cir.1993) 984 F.2d 1053, 1056; U.S. v. Ford (11th Cir.1994) 34 F.3d 992, 995; U.S. v. Myers (7th Cir.1995) 46 F.3d 668, 669.) The analogy is neither good law nor good physics. As a recent decision from the Tenth Circuit points out, the thermal imager does not simply measure the waste heat radiating from a structure, but it measures all temperature differentials across the exterior surface of the structure. (U.S. v. Cusumano (10th Cir.1995) 67 F.3d 1497, rehg. granted Dec. 15, 1995.) Therefore, the function of the device is to paint an infrared picture of the heat sources which permits inferences about the heat generating activities occurring within the residence. (Id. at p. 1501.) Moreover, as the Cusumano court notes, the thermal imager is no more directed to measuring waste heat than the electronic bug affixed to the phone booth in Katz was directed to collecting waste sound waves. (Ibid.)

The principle that nondisclosed activities within the home are those in which society accepts a reasonable expectation of privacy and therefore activities which require a warrant for government intrusion is clearly set out in two Supreme Court beeper cases. In United States v. Karo, supra, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530, drug enforcement agents arranged for a beeper to be inserted in a can of ether the agents believed was being obtained for the purpose of extracting cocaine from drug-impregnated clothing. (Id. at p. 708, 104 S.Ct. at p. 3299.) Using the signals from the beeper the agents located the can in the course of its movements to a private residence, to two different storage facilities, and then to a second residence. (Id. at pp. 708-709, 104 S.Ct. at pp. 3299-3300.) The court concluded that the monitoring of the beeper when it was inside a private residence was an unreasonable search because "[t]he beeper tells the agent that a particular article is actually located at a particular time in the private residence and is in the possession of the person or persons whose residence is being watched." (Id. at p. 715, 104 S.Ct. at p. 3303.) While the court noted that the monitoring of the beeper was less intrusive than a full-scale search would be, nonetheless the beeper revealed information to the government which would not otherwise have been obtained without a search warrant. (Ibid.)

The outcome of Karo turned on the information conveyed to the monitoring agents by the beeper's signals while it was within the residence and therefore the case was distinguished by the court from its holding a year earlier in United States v. Knotts (l983) 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55. In Knotts a beeper was inserted into a drum of chloroform which authorities believed would be used for the manufacture of illicit drugs. However, in that case the beeper was monitored only on its journey over public...